“This Death Some Strong and Stout Hearted Man Doth Choose”: The Practice of Peine Forte et Dure in Seventeenth- and Eighteenth-Century England”

Law and History Review

Volumn 23, Issue 2, 2005, Pages 279-313

  McKenzie, Andrea ^a  

^a UNIVERSITY OF VICTORIA   (Canada)

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EID: 33645488543     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.1017/S0738248000000304     Document Type: Article

References (71)

1. In the case of high treason, non-capital felonies, and misdemeanors, the prisoner's silence was taken as a guilty plea. See discussion in J. M. Beattie, Crime and the Courts in England, 1660-1800 (Princeton: Princeton University Press, 1986, 337-38).
2. These quotations and the extract above are from The Proceedings at the Sessions of the Peace, and the Oyer and Terminer, for the City of London and the County of Middlesex 13-15 January 1720/1 http://www.oldbaileyonline.org/html_units/1720s/t17210113-43.html (hereafter Proceedings). In cases where two names are given (e.g., Phillips alias Cross), I follow the contemporary convention of giving preference to the second, except where it is an obvious nickname (e.g., “Handy”). Unless otherwise indicated, all printed primary sources are published in London.
3. Applebee's Original Weekly Journal 14 January 1720/1.
4. The Ordinary of Newgate his Account of the Behaviours, Confessions and Last Dying Words of the Malefactors that were Executed at Tyburn on the Wednesday the 8th of February, 1720/1, 4 (hereafter abbreviated as Ordinary's Account, followed by date of execution); Applebee's Original Weekly Journal 14 January 1720/1; The Daily Post 16 January 1720/1.
5. The Daily Post 14 January 1720/1.
6. Andrew Knapp and William Baldwin, Criminal Chronology; or, the New Newgate Calendar… (1809), 1:214.
7. James Bradley Thayer, A Preliminary Treatise on Evidence at the Common Law (Boston: Little & Brown, 1898), 77.
8. Alfred Marks, Tyburn Tree: Its History and Annals (London: Brown, Langham & Co., 1908), 41; H. R. T. Summerson, “The Early Development of the Peine Forte et Dure,” in Law, Litigants and the Legal Profession, ed. E. W. Ives and A. H. Manchester (London: Royal Historical Society, 1983), 124; and idem, “Suicide and the Fear of the Gallows,” The Journal of Legal History 21 (April 2000): 54.
9. Sir Thomas Smith, De Republica Anglorum, ed. Mary Dewar (Cambridge: Cambridge University Press, 1982), 112.
10. See for instance Peter Lake and Michael Questier, “Agency, Appropriation and Rhetoric under the Gallows: Puritans, Romanists and the State in Early Modern England,” Past & Present 153 (1996): esp. 75-76, 79-82; Andrea McKenzie, “Martyrs in Low Life? Dying ‘Game’ in Augustan England,” Journal of British Studies 2 (April 2003): 193-96.
11. Quoted in Zachary Babington, Advice to Grand Jurors in Cases of Blood… (1677), 191. According to this statute, prison forte et dure applied only to “Notorious Felons,” not “Prisoners which be taken of light Suspicion.” By the early fourteenth century, “the rule came to apply to all who would not put themselves on a jury” without exception (John Bellamy, Crime and Public Order in England in the Later Middle Ages [London: Routledge and Kegan Paul, 1973], 141).
12. Fleta, ed. and trans. H. G. Richardson and G. O. Sayles, Selden Society, vol. 72 (London: B. Quaritch, 1953), 85.
13. Britton, ed. and trans. Francis Morgan Nichols (1865; repr. Holmes Beach, Fla.: Wm. W. Gaunt & Sons, 1983), 1:27; Summerson, “Early Development of the Peine Forte et Dure,” 119.
14. Vita Edwardi Secundi, ed. N. Denholm-Young (1957), 128, quoted in Summerson, “Early Development of the Peine Forte et Dure,” 116.
15. Thayer, Preliminary Treatise, 80.
16. The Proceedings on the King's Commission of the Peace, Oyer and Terminer, and Gaol-Delivery of the County-Gaol, held for the County of Surry, at Kingston upon Thames 30 March-4 April 1726, 2. I am grateful to John Beattie for this reference.
17. This was likely the case even in the middle ages; see Bellamy, Crime and Public Order, 142.
18. William Blackstone, Commentaries on the Laws of England (1765-69), 4:325.Whether the accused was maliciously or congenitally mute was established by the jury. In April 1725 at the Old Bailey, when George Armstrong, a “deaf and dumb” man was arraigned for theft, “the Jury enquired if the prisoner stood mute by his own Will, or by the Act of God; and on the Evidence of several Witnesses, who had known him for 12 or 13 Years past [already in court, ready to speak to Armstrong's character], they gave their Verdict for the latter. Then the Court directed them to enquire into the Felony, in the same Manner as if the Prisoner had pleaded Not Guilty.” After being given a very good character, Armstrong was acquitted (Proceedings 7-10 April 1725 http://www.oldbaileyonline.org/html_units/1720s/ t17250407-70.html). See also Beattie, Crime and the Courts, 337.
19. Blackstone, Commentaries. If the offense was clergyable, the prisoner could claim benefit of clergy and be released “even though he was too stubborn to pray it” (4:325).
20. Commentaries.
21. Babington, Advice to Grand Jurors, 192.
22. It was however the executioner, acting as the sheriff's deputy, who carried out the punishment of tying the thumbs of recalcitrant prisoners or pressing mute defendants.
23. Summerson, “Early Development of the Peine Forte et Dure,” 120; see also Bellamy, Crime and Public Order, 142.
24. Raphael Holinshed, Chronicles, comprising the description and histories of England (1586), 1:185.
25. John Mush, “A True Report of the Life and Martyrdom of Mrs. Margaret Clitherow,” in The Troubles of Our Catholic Forefathers Related by Themselves, ed. John Morris, 3rd series (London: Burns and Oates, 1877), 432. A woman arraigned at the Old Bailey in 1676 was sentenced to be pressed, but there is no evidence that this sentence was subsequently carried out (A True Narrative of the Proceedings at the Sessions-house in the Old Bayly… 23-25 August 1676 [London: Printed for D. M.], 7).
26. Langbein, Torture and the Law of Proof, 76.
27. John Kelyng, A Report of Divers Cases in Pleas of the Crown… (1708), 28. By the eighteenth century, this practice seems to have been adopted by other assize courts; certainly mute prisoners’ thumbs were tied at the Surrey assizes in Kingston, as is demonstrated in the case of Edward Burnworth.
28. Proceedings 17-19 May 1716 http://www.oldbaileyonline.org/html_ units/1720s/ t17160517-41.html. In his subsequent trial, White “confess'd he shot the Woman” whom they had robbed, “but that he did not intend it, but only fir'd to frighten her.” Thurland and White were hanged.
29. “but that he did not intend it, but only fir'd to frighten her.”.
30. William Hawkins, Treatise on the Pleas of the Crown, 8th ed. (London: S. Sweet, 1824), 2:464; Summerson, “Suicide and the Fear of the Gallows,” 53-54.
31. Proceedings 13-15 January 1720/1 http://www.oldbaileyonline.org/html_units/1720s/ t17210113-43.html.
32. Beattie, Crime and the Courts, 338; Saussure, Foreign View of England, 120.
33. The Suffolk Parricide. Being the Trial, Life, Transactions, and Last Dying Words, of Charles Drew, of Long-Melford, in the County of Suffolk… (1740), 42.
34. Marks, Tyburn Tree, 41.
35. Proceedings 27 February-1 March 1733/4 http://www.oldbaileyonline.org/html_units/ 1730s/t17340227-6.html. Durant was convicted of single (non-capital) felony.
36. Proceedings 28 August-1 September 1741 http://www.oldbaileyonline.org.html_units/ 1740s/t17410828_3.html.
37. Summerson, “Early Development of the Peine Forte et Dure,” 124.
38. Robert Calef, More Wonders of the Invisible World, or, the Wonders of the Invisible World Display'd in Five Parts… (1700), 106.
39. Summerson, “Suicide and the Fear of the Gallows,” 54; Ordinary's Account 8 February 1720/1, 4.
40. State Trials, 1:913-14.
41. Barrington, Observations on the More Ancient Statutes, 87. Significantly, peine forte et dure could theoretically extend not only to those who refused to plead, but for anyone who in general rejected the tribunal. After a defendant in 1664 challenged thirty-six prospective jurors, so that he could not be tried, the panel of judges decided “that he should be hanged and not pressed to death” despite the fact that precedent suggested “that he should be pressed as a Person that refused the Law” (Kelyng, Report of Divers Cases in Pleas of the Crown, 36).
42. Charles L. Wells, “Early Opposition to the Petty Jury in Criminal Cases,” The Law Quarterly Review 30 (January 1914): 101.
43. J. M. Beattie, “London Juries in the 1690,” in Twelve Good Men and True, 251; see also idem, Policing and Punishment, 266-69.
44. Douglas Hay, “Property, Authority and the Criminal Law,” in Douglas Hay et al., Albion's Fatal Tree: Crime and Society in Eighteenth-Century England (London: Allen Lane, 1975), 26, 25.
45. James C. Scott, Domination and the Arts of Resistance: Hidden Transcripts (New Haven and London: Yale University Press, 1990).
46. The Proceedings at the Sessions at the Old-Baily, August the 27th and 28th… (1679), 4.
47. Samuel Garth, The Dispensary (1699), Canto I, 1; Johnson, A General History of the Lives and Adventures of the Most Famous Highwaymen, Murderers, Street Robbers &c… (1734); Captain Alexander Smith, Memoirs of the Life and Times of the Famous Jonathan Wild. Together with the History and Lives, of Modern Rogues… (1726).
48. Langbein, Torture and the Law of Proof, 75.
49. Barrington, Observations on the More Ancient Statutes, 84n.
50. State Trials, 3:913-14, 3:929-30n.
51. Bellamy, Crime and Public Order, 142; Luke Owen Pike, A History of Crime in England (London: Smith, Elder & Co., 1873), 1:211.
52. John Knott, Discourses of Martyrdom in English Literature, 1563-1694 (Cambridge: Cambridge University Press, 1993), 82; McKenzie, “Martyrs in Low Life?” 194-96.
53. Observations on the More Ancient Statutes., 435.
54. John Gerard, The Autobiography of a Hunted Priest, trans. Philip Caraman, ed. Graham Greene (New York: Image Books, 1955), 79.
55. Lisa Silverman, Tortured Subjects: Pain, Truth and the Body in Early Modern France (Chicago and London: University of Chicago Press, 2001), 8-9.
56. McKenzie, “Martyrs in Low Life?” 190-91.
57. Bloody Murtherer, 17, 50.
58. Observations on the More Ancient Statutes., 54.
59. Unhappy Marksman, i; Smith, Life and Times, 156.
60. Unhappy Marksman, 14, 26.
61. Observations on the More Ancient Statutes., 25.
62. Smith, Life and Times, 164.
63. Observations on the More Ancient Statutes., 165.
64. Unhappy Marksman, 21, 26, 22.
65. Observations on the More Ancient Statutes., 26-27.
66. Smith, Life and Times, 168; Unhappy Marksman, 29-30.
67. Linebaugh, “Tyburn Riot Against the Surgeons,” 115. For the popular association between “game” criminals and bridegrooms, see [Daniel Defoe], Street-Robberies, Consider'd (1728), 52; Fog's Journal 19 March 1737, 169. I discuss the connection between execution dress and symbolic claims of innocence at greater length in “God's Tribunal: Guilt, Innocence and Execution in England, 1670-1770,” Cultural and Social History (forthcoming).
68. Smith, Life and Times, 281. Something of Burnworth's reputation and self-conception can be inferred from his nickname, “Young Frazier,” deriving from the fact that he had “spent a great deal of Time in Cudgel-Playing, Wrestling, &c. at the Ring in Moorfields kept by one Frazier” (Weekly Journal; or British Gazetteer 9 April 1726).
69. Proceedings 13-15 January 1720/1.
70. Measure for Measure, Act IV, Scene ii.
71. Simon Devereaux, “The Burning of Women Reconsidered,” in Crime, History and Societies, forthcoming.